How come sexual assault is one of hardest crime to prosecute vs every other crime?
In: 2253
Add to the above: DAs don’t prosecute it because it’s hard to win. Even when there is massive evidence, they choose other cases and decline to prosecute in SA cases because if they lose it’s a loss for them, and they want a winning record to show how effective they are.
Source: sheriff’s office sexual assault investigator, last week, re an active case
Former prosecutor here – child molestation cases were the hardest ones to win. It was often the word of the child vs the offender with little corroborating evidence. The child often would not testify or did so poorly, while the predator was a polished and well presenting adult.
The key is locking in other evidence and allowing the child to testify remotely. The jury can see the child but the child is off site and appearing via video. They can only see the attorney asking questions.
Two cases really stick with me through the years. In one, a woman was jogging in a state park. A man was playing with his kids at a nearby splash pad. He saw her, hid along the trail, and ambushed and raped her. She was pregnant, miscarried, caught an incurable STD, and her fiancée broke up with her afterwards. The offender was convicted, but she later killed herself.
The second was a man who vaginally raped his five year old daughter. She caved on the stand, despite testifying remotely, and would only cry. Fortunately, the offender called someone immediately after his arrest and said “go to my house and get the bloody panties out of the washer…get rid of them”. The line was recorded. I played that for the jury and it still took them three days of deliberation to convict him. He received 2 life sentences plus 100 years and will never be a free man again.
Another widespread problem is the turnover of prosecutors. States often pay prosecutors on par with state troopers, despite the attorneys having 7 years of education and $200k plus in student loan debt. As a result, the good ones leave for greener pastures because private law firms will pay top dollar for jury trial experience. I did this after 6 years with the State, and my salary tripled over night.
Most crimes are crimes no matter the circumstances, but with sex it’s only a crime if 1 party doesn’t consent. Like, in a murder trial, the defendant can’t just say the victim asked to be murdered, that’s still a crime, and pretty much no one asks to be murdered. But with sexual assault the defendant can say the other person said they wanted to do it, and now you have to prove they didn’t, which is nearly impossible. That’s why you really only see successful prosecution when the question of consent is removed (if the victim was a minor, drugs were involved, the attacker was in a position of authority over the victim, etc.)
#1 and primarily– a lack of consent is difficult to prove. It’s easy to define, but defining it isn’t the matter here– it’s proving that it happened. Sexual activity can be proved, but the matter of consent is almost always one person’s words against another. Most crimes have a tendency to leave behind some kind of evidence, but many forms of sexual assault do not.
Beyond that, there are more factors. In no particular order:
-Unfortunately, it’s very easy to falsely accuse people of this crime, and it does happen often enough to be noted. It’s difficult to falsely accuse someone of beating you up, because law enforcement would expect to see evidence of physical assault. But it’s easy to accuse someone of sexual assault, especially if you actually did have sexual contact, because a complete lack of evidence is normal. So even though most accusations are probably true, there are enough false ones that the judicial system has to take seriously the possibility that the accusations are made up. Especially because of the consequences.
-It’s related to the evidence concern, but in a lot of cases it’s difficult for the victim to realize that they are the victim of the crime. Or to accept that truth. Many victims were too young to understand, or maybe intoxicated/drugged and don’t clearly remember what actually happened, or maybe there are circumstances that make the victim feel like it was a gray area (which it usually isn’t). So beyond the more obvious bravery required to come forward, sometimes victims don’t feel that it’s cut and dried. Also, the reputation for difficulty prosecuting makes itself even worse, as the victim may understand that it’s not likely to even be prosecuted if they don’t have evidence. They may feel like it’s a waste of their time.
-In the case of children, in some cases, it’s (arguably) better for the child to not draw excess attention to the incident. Especially with younger children who don’t fully understand the depth of what happened to them. Forcing them into the legal process and forcing them to bathe in the event may result in a bigger scar. This puts law enforcement, the judicial system, and psychologists at odds with each other– each has their own admirable goal and they are not always in sync. Is it objectively better to risk making a child’s trauma worse in order to prevent the possibility of others’ trauma? A difficult question to answer. If a plea deal can be had, it’s often the best compromise possible between everyone’s proper goals, which is one reason why sexual assault cases often plea way way down. Avoid making it worse for the victim, while still getting a shred of justice, and most importantly getting the guilt on record to act as a deterrent– it’s unfortunate that the perpetrator gets off easily in these cases, but hopefully a large % of them realize that they won’t get away with it a second time, and that’s something.
It actually isn’t. The idea that sexual assault is difficult to prosecute comes mostly from “victim advocates” and law enforcement. In reality, sex crimes have a fairly high [false conviction rate](https://www.prisonlegalnews.org/news/2018/sep/4/study-finds-wrongful-convictions-116-percent-sexual-assault-cases-pre-dna-testing-era/).
In fact, there are special rules for rape and sexual assault cases that prevent defendants from introducing useful evidence. In many jurisdictions, these are called “rape shield.” For instance, in my state, our rape shield rule prevents the defendant from introducing evidence of a prior allegation of a sex crime from the alleged victim, unless the alleged victim both admits making the allegation and that the allegation is false. If she denies making it, or says that it was true, you can’t introduce it without having a special hearing. And if you do win that hearing, the prosecutor gets an interlocutory (read: pretrial) appeal.
Sometimes, you’ll see claims that go like “less than 1% of rapes lead to a conviction of the perpetrator.” I’ve never been able to track down where this came from, but it is nonsense. For one, if it were true, that would mean that researchers had somehow found proof that a rape happened that the victim didn’t have, the police didn’t find, and the prosecutors didn’t know about. For two, many of the times this is claimed you can see that the researchers have essentially just asked women “did X ever happen to you” and “was there ever a conviction?” Self-reported data is notoriously unreliable, but also, many of the acts they classify as “rape” or “sexual assault” do not meet the legal definition of any of those terms. They often include things like “being talked into having sex.”
You’ll also often hear that the law used to be peculiarly hostile to alleged victims. This sometimes comes with the ridiculous claim that in the past, you had to have two witnesses to prosecute a rape. That is not true and as far as I know has never been true. The nature of rape cases before DNA meant that it was inherently a decision of which person to believe, and that may have led some to exaggerate the actual difficulty of prosecuting someone for rape.
How do you prove consent?
He says there was none.
She says there was.
Who is right?
Cmon now….. this one is clearly obvious. Because most of the time it’s all he said she said. Need real evidence
[removed]
Jumping on this to mention,
If you are in the armed services and you have been sexually assaulted, the Catch a Serial Offender Program (CATCH) at https://www.sapr.mil allows you to anonymously (or otherwise if you prefer) report the crime as well as many details involving the suspect. Many people don’t like to report out of fear of persecution or retaliation. Since perpetrators of sexual assault are often committing this crime more than once against multiple people, it is beneficial to have data on them even if you don’t want your particular case out there.
If someone is shot or stabbed, we know that something illegal likely happened. However, with sexual assault, (say date rape) the same thing could have happened and been a perfectly legal act of two people wanting to have sex together. The difference is the intent of one of the parties. One can lie about a lack of consent to police after the fact, or not reasonably communicate consent to the other person….all defenses to sexual assault.
Latest Answers